EXHIBIT 10.02
CHANGE-IN-CONTROL AGREEMENT
This Change-in-Control Agreement (the "Agreement")
is dated as of October 27, 1998, and is entered into by and
among XxXxxxxxx Xxxxxx III (the "Executive"), American
States Water Company (the "Company") and its wholly owned
subsidiary, Southern California Water Company, a California
corporation ("SCW").
RECITALS
The Company considers it essential to the best
interest of the Company and its shareholders that the
Executive be encouraged to remain with the Company and SCW
and continue to devote full attention to the Company's
business notwithstanding the possibility, threat or
occurrence of a Change in Control (as defined in Section 3).
The Company believes that it is in the best interest of the
Company and its shareholders to reinforce and encourage the
continued attention and dedication of the Executive and to
diminish inevitable distractions arising from the
possibility of a Change in Control. Accordingly, to assure
the Company that it will have the Executive's undivided
attention and services notwithstanding the possibility,
threat or occurrence of a Change in Control, and to induce
the Executive to remain in the employ of the Company and
SCW, and for other good and valuable consideration, the
Board of Directors of the Company and SCW has, at the
recommendation of the Company's Compensation Committee,
caused the Company and SCW to enter into this Agreement.
TERMS AND CONDITIONS
The Executive, the Company and SCW hereby agree to the
following terms and conditions:
1. Term of Agreement
If a Change in Control (as defined in Section 3) occurs
on or before the expiration date of this Agreement and while the
Executive is still an employee of the Company or SCW, then this
Agreement will continue in effect for two years from the date of
such Change in Control and, if the Executive's employment with
the Company or SCW is terminated within such two-year period,
this Agreement shall thereafter continue in effect until all of
the obligations of the Company and SCW under this Agreement shall
have been fulfilled. If no Change in Control occurs on or before
December 31, 2000, this Agreement shall expire; provided, however
that this Agreement shall be automatically extended for an
additional two years to December 31, 2002 if (i) a plan or
agreement for a Change in Control has been approved by the Board
of Directors of the Company or SCW on or before the expiration
date, or (ii) the Company and SCW have not delivered to you or
you shall have not delivered to the Company and SCW written
notice at least 60 days prior to the expiration date that such
expiration date shall not be so extended. This Agreement shall
continue to be automatically extended for an additional two-year
period and each succeeding two-year period if a plan or agreement
for a Change in Control has been approved by the Board of
Directors of the Company or SCW or the Company, SCW or you have
failed to give notice by the time and in the manner described in
this Section 1.
2. Change in Control Date
The "Change in Control Date" shall mean the first date
during the term of this Agreement on which a Change in Control
(as defined in Section 3) occurs; provided, however, that if a
Change in Control occurs and if the Executive's employment with
the Company or SCW is terminated after approval by the Board of
Directors of the Company or SCW of a plan or agreement for a
Change in Control but prior to the date on which the Change in
Control occurs, the "Change in Control Date" shall mean the date
immediately preceding the date of such termination.
3. Change in Control
A "Change in Control" shall mean any of the following
events:
(a) the dissolution or liquidation of either the
Company or SCW, unless its business is continued by another entity
in which holders of the Company's voting securities immediately
before the event own, either directly or indirectly, more than 50%
of the continuing entity's voting securities immediately after the
event;
(b) any sale, lease, exchange or other transfer (in one
or a series of transactions) of all or substantially all of the
assets of either the Company or SCW, unless its business is continued
by another entity in which holders of the Company's voting
securities immediately before the event own, either directly or
indirectly, more than 50% of the continuing entity's voting
securities immediately after the event;
(c) any reorganization or merger of the Company or SCW,
unless the holders of the Company's voting securities immediately
before the event own, either directly or indirectly, more than 50% of
the continuing or surviving entity's voting securities
immediately after the event;
(d) an acquisition by any person, entity or group
acting in concert of more than 50% of the voting securities of
the Company or SCW, unless the holders of the Company's voting
securities immediately before the event own, either directly or
indirectly, more than 50% of the acquirer's voting securities
immediately after the acquisition; or
(e) a change of one-half or more of the members of the
Board of Directors of the Company or SCW within a twelve-month
period, unless the election or nomination for election by
shareholders of new directors within such period constituting a
majority of the applicable Board was approved by the vote of at
least [two-thirds] of the directors then still in office who were
in office at the beginning of the twelve-month period.
4. Effective Period
For the purpose of this Agreement, the "Effective
Period" is the period commencing on the Change in Control Date
and ending on the date this Agreement terminates.
5. Termination of Employment
(a) Death or Disability: The Executive's employment shall
terminate automatically upon the Executive's death. If the
Disability (as defined below) of the Executive occurs during the
Effective Period, the Company or SCW may give the Executive
written notice of their intention to terminate the Executive's
employment. In such event, the Executive's employment with the
Company or SCW shall terminate effective on the 30th day after
receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within the 30 days after such
receipt, the Executive shall not have returned to full-time
performance of his or her duties. For purposes of this
Agreement, "Disability" shall mean the absence of the Executive
from his or her duties with the Company or SCW on a full-time
basis for [180] consecutive business days as a result of a
physical or mental condition which prevents the Executive from
performing the Executive's normal duties of employment and which
is (i) determined to be total and permanent by a physician
selected by the Company or SCW or their insurers and acceptable
to the Executive or the Executive's legal representative and/or
(ii) entitles the Executive to the payment of long-term
disability benefits from the Company's or SCW's long-term
disability plan commencing no later than the Disability Effective
Date.
(b) Cause: The Company or SCW may terminate the
Executive's employment other than for Cause or Disability during the
Effective Period as provided in Section 6(a). The Company or SCW
may also terminate the Executive's employment during the
Effective Period for Cause. For purposes of this Agreement,
"Cause" shall be limited to the following:
(i) the Executive's failure to render services to
the Company or SCW where such failure amounts to gross
neglect or gross misconduct of the Executive's responsibility
and duties,
(ii) the Executive's commission of an act of fraud
or dishonesty against the Company or any affiliate of the
Company, or
(iii) the Executive's conviction of a felony or other
crime involving moral turpitude.
(c) Good Reason: The Executive's employment may be terminated
by the Executive during the Effective Period for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities as in effect on the
Change in Control Date, or any other action by the Company
or SCW which results in a diminution in such position,
authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by
the Company or SCW, as the case may be, promptly after
receipt of notice thereof given by the Executive;
(ii) any failure by the Company or SCW to reappoint the
Executive to a position held by the Executive on the Change
in Control Date, except as a result of the termination of the
Executive's employment by the Company or SCW for Cause or
Disability, the death of the Executive, or the termination of
the Executive's employment by the Executive other than for Good
Reason;
(iii) reduction by the Company or SCW in the Executive's
base salary as in effect on the date hereof or as the same
may be increased from time-to-time;
(iv) the taking of any action by the Company or SCW
(including the elimination of benefit plans without providing
substitutes therefore or the reduction of the Executive's
benefits thereunder) that would substantially diminish the
aggregate value of the Executive's incentive awards and other
fringe benefits including the executive benefits and perquisites
from the levels in effect prior to the Change in Control Date;
(v) the Company's or SCW's requiring the Executive
to be based at any office or location which increases the
distance from the Executive's home to the office location by
more than [35] miles from the distance in effect as of the
Change in Control Date;
(vi) any failure by the Company or SCW to comply with
and satisfy Section 10(c) of this Agreement.
6. Obligations of the Company upon Termination
(a) Good Reason, Other Than for Cause or Disability: If the
Company or SCW shall terminate the Executive's employment other
than for Cause or Disability during the Effective Period, or the
Executive shall terminate employment for Good Reason during the
Effective Period, the Company and SCW agrees, subject to Section
8, to make the payments and provide the benefits described below:
(i) The Company and/or SCW shall pay to the Executive
in a cash lump sum within 10 days from the date of the
Executive's termination of employment an amount equal
to the product of (A) and (B), where (A) is three and (B)
is the Executive's annual base salary at the highest of
the rate in effect at any time during the three years
preceding the date of termination.
(ii) The Company and/or SCW shall also pay to the
Executive in a cash lump sum within 10 days from the date of
termination an amount equal to the sum of (A) the Executive's
base salary through the date of termination, plus (B) any
compensation previously deferred by the Executive (together
with any accrued earnings or interest thereon), plus (C) any
accrued vacation pay, in each case to the extent not theretofore
paid (the amounts referred to in this paragraph (ii) are
hereinafter referred to as the "Accrued Obligations").
(iii) The Company and/or SCW shall also pay to the
Executive in a cash lump sum within 10 days from the date of
termination an amount equal to the excess of (A) over (B),
where (A) is equal to the single sum actuarial equivalent of
what would be the Executive's accrued benefits under the terms
of the Southern California Water Company Pension Plan (or any
successor thereto), including any supplemental retirement plan
providing additional pension benefits, (hereinafter together
referred to as the "Pension Plan") at the time of the
Executive's termination of employment, without regard to
whether such benefits are "vested" thereunder, if the Executive
were credited with an additional two years of continuous service
after the termination of Executive's employment with the
Company or SCW at the Executive's highest annual rate of
compensation covered by such Pension Plan within the three years
preceding the date of the termination of the Executive's
employment with the Company or SCW and (B) is equal to the
single sum actuarial equivalent of the Executive's accrued
benefits under the Pension Plan at the time of the Executive's
termination of employment. The payment under this paragraph
(iii) shall not extinguish any rights the Executive has to
benefits under the Pension Plan. For purposes of this paragraph,
"actuarial equivalent" shall be determined using the actuarial
assumptions used under the Pension Plan for determining the
actuarial equivalence of different annuity forms of benefits. In
no event shall the additional two years of continuous service
referred to above cause the Executive to be deemed to be older
than the Executive's actual age for any purpose under this
Agreement.
(iv) For two years after the Executive's date of
termination, or such longer period as may be provided by
the terms of the appropriate plan, program, practice or policy,
the Company and SCW shall continue to provide welfare benefits
and fringe benefits and other perquisites to the Executive
and/or the Executive's family at least equal to those which
would have been provided to them if the Executive's employment
had not been terminated (in accordance with the most favorable
plans, practices, programs or policies of the Company and its
affiliates applicable generally to other peer executives and
their families immediately preceding the date of the Executive's
termination of employment); provided, however, that if the
Executive becomes employed by another employer and is eligible
to receive medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such
other plan during such applicable period of eligibility. For
purposes of determining eligibility (but not the time of
commencement of benefits) of the Executive for any retiree
benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have remained
employed until two years after the date of termination of
employment and to have retired on the last day of such period.
Following the period of continued benefits referred to in
this subsection, the Executive and the Executive's
family shall be given the right provided in Section 4980B of
the Internal Revenue Code of 1986 (the "Code") to elect to
continue benefits in all group medical plans. In the event
that the Executive's participation in any of the plans, programs,
practices or policies of the Company or SCW referred to in this
subsection is barred by the terms of such plans, programs,
practices or policies, the Company and/or SCW shall provide the
Executive with benefits substantially similar to those which the
Executive would be entitled as a participant in such plans,
programs, practices or policies. At the end of the period of
coverage, the Executive shall have the option to have assigned to
the Executive, at no cost and with no apportionment of prepaid
premiums, any assignable insurance policy owned by the Company
or SCW and relating specifically to the Executive.
(v) The Company and/or SCW shall enable the
Executive to purchase, at the end of the Effective Period, the
automobile, if any, provided by the Company and/or SCW for the
Executive's use at the time of the Executive's termination of
employment at the wholesale value of such automobile at such
time, as shown in the current addition of the National Auto
Research Publication Blue Book. At the Executive's election,
the Executive may retain any existing club memberships of the
Executive purchased by the Company or SCW upon reimbursement
to the Company or SCW, as the case may be, of any membership
costs paid by the Company or SCW.
(vi) To the extent not theretofore paid or provided, the
Company and/or SCW shall timely pay or provide the Executive
any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under
any plan, program, policy, practice, contract or agreement
of the Company and its affiliates (such other amounts and
benefits being hereinafter referred to as "Other Benefits")
in accordance with the terms of such plan, program, policy,
practice, contract or agreement.
(vii) The Executive shall be entitled to
interest on any payments not paid on a timely
basis as provided in this Section 6(a) at the applicable
Federal Rate provided for in Section 7872(f)(2)(A) of the Code.
(b) Death: If the Executive's employment is
terminated by reason of the Executive's death during the Effective
Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives
under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as applicable, in a
cash lump sum within 10 days of the date of the
Executive's death.
(c) Disability: If the Executive's employment is
terminated by reason of the Executive's Disability during the
Effective Period, this Agreement shall terminate without further
obligations to the Executive, other than for payment of
Accrued Obligations and the timely payment or provision
of Other Benefits. Accrued Obligations shall be paid to
the Executive in a cash lump sum within 30 days of the
Executive's termination of employment.
(d) Cause, Other than for Good Reason: If the
Executive's employment shall be terminated for Cause during the
Effective Period or, if the Executive voluntarily
terminates employment during the Effective Period,
excluding a termination for Good Reason, this Agreement
shall terminate without further obligations to the
Executive, other than for Accrued Obligations and any
benefits payable to Executive under a plan, policy,
practice, etc., referred to in Section 7 below. Accrued
Obligations shall be paid to the Executive in a cash lump
sum within 60 days of the Executive's termination of
employment.
7. Non-Exclusivity of Rights
Subject to Section 8, nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice
provided by the Company or any of its affiliates and for
which the Executive may qualify, nor, subject to Sections 8
and 19, shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or
agreement with the Company or any of its affiliates. Amounts
which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy,
practice, program, contract or agreement with the Company or
any of its affiliates at or subsequent to the date of
termination of the Executive's employment shall be payable
in accordance with such plan, policy, practice, program,
contract or agreement except as explicitly modified by this
Agreement.
8. Limitation on Benefits
(a) Notwithstanding anything in this Agreement to the
contrary, if any payments or benefits to be made to or for the
Executive's benefit, whether pursuant to this Agreement
or otherwise, whether by the Company, SCW or another
entity or person, would constitute "parachute payments"
within the meaning of Section 280G of the Code, then such
payments or benefits shall be modified to the extent
necessary so that no portion of such benefits or payments
shall subject the Executive to any excise tax under
Section 4999 of the Code.
(b) In the event the amount of any "parachute payments"
which would be payable to or for the benefit of the Executive
without regard to this Section must be modified to comply
with this Section, the Executive shall direct which
"parachute payments" are to be waived or modified;
provided, however, that no change in timing of the
payments shall be made without the consent of the Company
or SCW.
(d) Payment of amounts pursuant to this Agreement
shall not, unless directed by the Executive, be delayed
pending determination of the status of a payment as a
"parachute payment" by the Internal Revenue Service, court
or similar body of competent jurisdiction. Either the
Company, SCW or the Executive may, however, request a
determination as to whether the payment or benefit would
constitute a parachute payment and, if so requested, such
determination shall be made by an independent accounting
firm selected by the Company and SCW and approved by the
Executive. Payment may be delayed pending any such
determination, provided that the Executive shall be entitled
to interest on any delayed payment at the applicable Federal
Rate provided for in Section 7872(f)(2)(A) of the Code.
(c) Notwithstanding anything in this Agreement to
the contrary, if any payments or benefits to be made to or
for the Executive's benefit, whether pursuant to this
Agreement or otherwise, whether by the Company, SCW or
another entity or person, would not be deductible by the
Company or SCW due to limitations imposed by Section 162(m)
of the Code, then such payments or benefits shall be
deferred to the extent necessary until such time as such
payments would be deductible under Section 162(m) of the
Code. Either the Company, SCW or the Executive may request
a determination as to whether any payments would be subject
to limitations on deductibility under Section 162(m) of the
Code and, of so requested, such determination shall be made
by independent legal counsel selected by the Company or SCW
and approved by the Executive. Payment may be delayed
pending any such determination, provided that the Executive
shall be entitled to interest on any delayed payment at the
applicable Federal Rate provided for in Section
7872(f)(2)(A) of the Code. [The Executive shall also be
entitled to interest on any payments deferred as a result of
the limitations on deductibility under Section 162(m) of the
Code at the applicable Federal Rate provided for in Section
7872(f)(2)(A) of the Code.]
9. Full Settlement
The obligation of the Company and SCW to make the
payments provided for in this Agreement and otherwise to
perform their obligations hereunder shall not be affected by
any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company or SCW may have
against the Executive or others. [In no event shall the
Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to
the Executive under any of the provisions of this Agreement
and, except as provided in Section 6(a)(iv), such amounts
shall not be reduced whether or not Executive obtains other
employment.]
10. Successors
(a) This Agreement is personal to the Executive and
shall not be assignable by the Executive other than by will or the
laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company, SCW and their successors and assigns.
(c) The Company and SCW will require any successor
(whether direct or indirect, by purchase, merger, consolidation
oo otherwise) to all or substantially all of their business
and/or assets to assume expressly and agree to perform
this Agreement in the same manner and to the same extent
that the Company or SCW would be required to perform it
if no such succession had taken place. As used in this
Agreement, the "Company" shall mean the Company as
defined and any successor to its business and/or assets
which assumes and agrees to perform this Agreement by
operation of law, or otherwise, and "SCW" shall mean SCW
as defined and any successor to its business and/or
assets which assumes and agrees to perform this Agreement
by operation of law, or otherwise.
11. Arbitration
(a) Because it is agreed that time will be of the essence
in determining whether any payments are due to the Executive
under this Agreement, the Executive may submit any claim for
payment under this Agreement or dispute regarding the
interpretation of this Agreement to arbitration. This
right to select arbitration shall be solely that of the
Executive, and the Executive may decide whether or not to
arbitrate in his or her discretion. The "right to select
arbitration" is not mandatory on the Executive, and the
Executive may choose in lieu thereof to bring an action
in an appropriate civil court. Once an arbitration is
commenced, however, it may not be discontinued without
the mutual consent of both parties to the arbitration.
During the lifetime of the Executive only he or she can
use the arbitration procedure set forth in this section.
(b) Any claim for arbitration may be submitted as
follows: If the Executive disagrees with the Company or SCW
regarding the interpretation of this Agreement and the claim is
finally denied by the Company or SCW in whole or in part,
such claim may be filed in writing with an arbitrator of
the Executive's choice who is selected by the method
described in the next three sentences. The first step of
the selection shall consist of the Executive submitting a
list of five potential arbitrators to the Company and
SCW. Each of the five arbitrators must be either (1) a
member of the National Academy of Arbitrators located in
the State of California or (2) a retired California
Superior Court or Appellate Court judge. Within two
weeks after receipt of the list, the Company and SCW
shall select one of the five arbitrators as the
arbitrator for the dispute in question. If the Company
and SCW fail to select an arbitrator in a timely manner,
the Executive shall then designate one of the five
arbitrators as the arbitrator for the dispute in
question.
(c) The arbitration hearing shall be held within thirty
days (or as soon thereafter as possible) after the picking of the
arbitrator. No continuance of the hearing shall be
allowed without the mutual consent of the Executive and
the Company. Absence from or nonparticipation at the
hearing by either party shall not prevent the issuance of
an award. Hearing procedures which will expedite the
hearing may be ordered at the arbitrator's discretion,
and the arbitrator may close the hearing at his or her
discretion when sufficient evidence to satisfy issuance
of an award has been presented.
(d) The arbitrator's award shall be rendered as
expeditiously as possible and in no event later than thirty
days after the close of the hearing. In the event the arbitrator
finds that the Company or SCW has breached this Agreement, he
or she shall order the Company or SCW, as the case may
be, to immediately take the necessary steps to remedy
the breach. The award of the arbitrator shall be final
and binding upon the parties. The award may be enforced
in any appropriate court as soon as possible after it is
rendered. If an action is brought to confirm the award,
the Company, SCW and the Executive agree that no appeal
shall be taken by either party from any decision rendered
in such action.
(e) The Company and SCW will be considered the
prevailing party in a dispute if the arbitrator determines that
neither the Company nor SCW has breached this Agreement.
Otherwise, the Executive will be considered the
prevailing party. In the event that the Company and SCW
are the prevailing party, the fee of the arbitrator and
all necessary expenses of the hearing (excluding any
attorneys' fees incurred by the Company or SCW) including
stenographic reporter, if employed, shall be paid by the
Executive. In the event that Executive is the prevailing
party, the fee of the arbitrator and all necessary
expenses of the hearing (including all attorneys' fees
incurred by the Executive), including the fees of a
stenographic reporter if employed, shall be paid by the
Company and SCW.
12. Governing Law
The laws of California shall govern the validity
and interpretation of this Agreement, with regard to
conflicts of laws.
13. Captions
The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
14. Amendment
This Agreement may not be amended or modified
otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal
representatives.
15. Notices
All notices and other communications regarding
this Agreement shall be in writing and shall be hand
delivered to the other party or sent by prepaid registered
or certified mail, return receipt requested, addressed as
follows:
If to the Executive: __________________________
__________________________
__________________________
If to the Company: American States Water Company
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attn: Secretary
If to SCW: Southern California Water Company
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attn: Secretary
or to such other address as either party shall have
furnished to the other in writing. Notice and communications
shall be effective when actually received by the addressee.
16. Severability
The lack of validity or enforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
17. Withholding Taxes
The Company and SCW may withhold required federal,
state, local or foreign taxes from any amounts payable under
this Agreement.
18. No Waiver
The Executive's, the Company's or SCW's failure to
insist upon strict compliance with any provision of this
Agreement or the failure to assert any right the Executive,
the Company or SCW may have under this Agreement, including,
without limitation, the right of the Executive to terminate
employment for Good Reason, shall not be deemed to be a
waiver of such provision or right or any other provision or
right under this Agreement.
19. At-Will Employment
The Executive, the Company and SCW acknowledge
that, except as may otherwise be provided under any other
written agreement between the Executive, the Company and
SCW, the employment of the Executive by the Company and SCW
prior to the Change in Control Date is "at will" and, prior
to the Change in Control Date, the Executive's employment
may be terminated by either the Executive or the Company or
SCW, as the case may be, at any time, in which case the
Executive shall have no further rights under this Agreement.
From and after the Change in Control Date, this Agreement
shall supersede any other agreement between the parties with
respect to the subject matter hereof.
20. Counterparts
This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an
original, but all of which shall together constitute one and
the same Agreement.
21. Joint and Several Liability
The obligation of the Company and SCW to make payments
hereunder shall be joint and several.
22. Allocation of Payments
As between the Company and SCW, any payments to be made
by the Company and/ SCW hereunder shall be allocated between
the Company and SCW on the same basis as the payment of
salary and benefits of the Executive were allocated between
the Company and SCW immediately prior to the Change in
Control Date.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day
and year first written above in Los Angeles, California.
AMERICAN STATES WATER COMPANY
By /s/ Xxxxx X. Xxxxx
------------------------------
Title President and Chief
Executive Officer
SOUTHERN CALIFORNIA WATER COMPANY
By /s/ Xxxxx X. Xxxxx
------------------------------
Title President and Chief
Executive Officer
EXECUTIVE
/s/ XxXxxxxxx Xxxxxx III
-----------------------------------
